section 278 agreement (developer constructing) · 2019. 4. 18. · dated 20. the cornwall council ....

DATED 20

THE CORNWALL COUNCIL

and

D E E D O F A G R E E M E N T

made pursuant to Sections 278 [and 38] of the Highways Act 1980 Section 9 of The Cornwall County Council Act 1971

Section 111 of the Local Government Act 1972

and all other enabling powers relating to

highway works on and adjoining the

in the County of Cornwall

Head of Legal Services Legal Services County Hall Truro Cornwall TR1 3AY

FOR I

NFOR

MATIO

N ONL

Y

Index

Contents

1. Definitions and Interpretations

2. Recitals

3. Statutory Provisions

4. Enduring Covenant

5. Developer’s Covenants

6. Council’s Covenants

7. Approved Materials

8. Grant of Easements

9. Access to the Highway

10. Traffic Control

11. Road Safety

12. Indemnity

13. Substantial Completion and Dedication

14. Maintenance Period

15. Certification and Adoption of the Highway Works

16. Option

17. Power to Execute Works in Default

18. Surety’s Obligations/Cash Deposit

19. Release of the Bond/Cash Deposit

20. Notices

21. Determination

22. Interest on Overdue Payments

23. Mortgagee Consent

24. Insurance

25. Final Site Clearance

26. Dispute Resolution

27. Disposition

28. Assignment

2

FOR I

NFOR

MATIO

N ONL

Y

29. The Contracts (Rights of Third Parties) Act 1999

30. Miscellaneous

The Schedules

3

FOR I

NFOR

MATIO

N ONL

Y

THIS DEED OF AGREEMENT is made the

day of Two thousand and BETWEEN

THE CORNWALL COUNCIL of County Hall Truro Cornwall TR1 3AY

(hereinafter called “the Council”) of the first part and

whose Registered Office is situate at

(hereinafter called “the [Owner][Company]”) of the second part and

(hereinafter called “the Developer”) of the third part and

(hereinafter called “the Mortgagee”) of the fourth part and

(hereinafter called “the Surety”) of the fifth part

1. Definitions and Interpretation

1.1 In this Agreement the following expressions (arranged in alphabetical

order and in certain instances incorporating in their definitions expressions

defined elsewhere in this Clause) shall have the meanings set out below:-

1.1.1 the “1980 Act” means the Highways Act 1980

1.1.2 the “1991 Act” means the New Roads and Street Works Act 1991

1.1.3 the “Authorised Officer” means the Council’s Authorised Officer and

shall be deemed to mean the officer of the Council from time to time holding

that appointment or (if no officer holds that appointment) the person carrying

out the duties of that appointment or such suitably qualified person as he

may from time to time nominate

4

FOR I

NFOR

MATIO

N ONL

Y

1.1.4 the “Bond Figure” means the sum of [

] pounds (£[ ])

1.1.4 the “Cash Deposit” means the sum of [ ]

(£ ) which shall attract simple interest calculated from the date of

this Agreement at the rate of ONE-HALF OF ONE PERCENT (0.5%) below

the prevailing Base Rate of Interest payable by the Council’s bank such rate

of interest published in the Financial Times on the date of this Agreement and

thereafter from day to day in accordance with variations to the said Base

Rate published as aforesaid

1.1.5 the “CDM Regulations” means The Construction (Design and

Management) Regulations 2015 or as amended

1.1.6 the “Client” means any person for the time being appointed under the

CDM Regulations in relation to the Highway Works

1.1.7 the “Commuted Sum” means the sum of [ ] pounds

(£ ) estimated by the Authorised Officer (acting reasonably) as

being the amount required for the future maintenance of the [ ].

Should (prior to the issue of the Final Completion Certificate) the Authorised

Officer acting reasonably require further sums to be paid to the Council

towards the estimated costs of maintaining the [ ]

together with any of the works set out in Part 3 of the Schedule such sum

shall be paid by the Developer within the Payment Period

1.1.8 the “Council” includes its successors in title or other person or body

having the responsibility for the exercise of the functions of the principal

highway authority for the county of Cornwall from time to time and for the

time being

5

FOR I

NFOR

MATIO

N ONL

Y

1.1.9 the “Dedicated Land” means all that piece of land containing an

area of [ ] square metres or thereabouts situate adjoining the road

known as [ ] in the County of Cornwall which said piece

of land is more particularly delineated and shown coloured pink on Plan 'C'

1.1.10 the “Default Costs” (including but not limited to) an estimate of the

costs of:-

(i) any and all surveys in order to establish exactly what Highway Works

remain outstanding (which will be the subject of an interim claim)

(ii) carrying out of any Highway Works (but not those works revealed by

any necessary surveys which will be subject to a further claim should this be

necessary) including the costs of any licences consents and the like that may

be required to undertake the Highway Works

(iii) the preparation of (including any necessary surveys) the Final

Drawings

(iv) the maintenance of the Highway Works [and the Section 228 Works]

for a period of twelve months or such other time as deemed reasonable by

the Authorised Officer prior to the Highway Works becoming maintainable at

the public expense and also including the recovery of costs

(v) the legal costs and administration costs incurred by the Council in the

preparation and administration of all Notices issued together with all legal

and administration costs incurred in the implementation of the provisions

pursuant to the Clauses headed “Power to Execute Works in Default” and

“Surety’s Obligations/Cash Deposit”

(vi) the costs payable by the Council to a third party (including but not

limited to the consideration payable to and legal fees of any third party for

any easement required in respect of the Street Furniture the Street Lighting

6

FOR I

NFOR

MATIO

N ONL

Y

the Surface Water Drainage System (including soakaways) and the Traffic

Signal Equipment sited on third party land and such other easements as may

be required by the Council for the future maintenance of any structure

forming part of the Works as constructed) if required

(vii) an amount due for any unpaid Inspection Fees and Commuted Sums

owing to the Council

(viii) the repayment of any amount expended by the Council in undertaking

any emergency work required to the proposed Road or Roads prior to them

becoming highways maintainable at the public expense

1.1.11 the “Default Notice” means the notice issued on failure of the

Developer to comply with the Final Notice

1.1.12 the “Default Works” means those works listed in the Remedial List

and any outstanding obligations on the part of the Developer under this

Agreement and considered by the Authorised Officer in his absolute discretion

required to bring the Road or Roads up to adoptable standard

1.1.13 the “Design” means the design and scheme of works prepared by the

Developer for the carrying out of the Highway Works

1.1.14 the “Developer” includes its successors in title and all persons

deriving title under or through it and having any legal estate interest right or

title in or to the Site or any part or parts of it

1.1.15 the “Developer’s Counter-Notice” means a Notice issued by the

Developer within 28 days of receipt of the Default Notice which shall contain

a full programme of works including a start date on Site which start date shall

be within FIFTY-SIX (56) days of the date of the Default Notice or such other

time period as agreed by the Authorised Officer in his absolute discretion

7

FOR I

NFOR

MATIO

N ONL

Y

1.1.16 the “Development Works” means the development of the Site as a

and all other things ancillary thereto

including all water road water drainage systems and shall (where the context

so admits) mean any part or parts of them

1.1.17 the “Drawings” means Plans ‘A’ ‘B’ and ‘C’ as defined below together

with such other drawings approved by or on behalf of the Authorised Officer

1.1.18 the “Expert” means a person appointed in accordance with the

clause headed ‘Dispute Resolution’ to resolve any dispute or difference

arising between the parties hereto touching or concerning any matter or thing

arising out of this Agreement (other than a dispute or difference touching or

concerning the meaning or construction of this Agreement)

1.1.19 the “Final Completion Certificate” means the certificate to be

issued pursuant to the clause headed “Certification and Adoption of the

Road Works”

1.1.20 the “Final Drawings” means the most recent issue of the detailed

plans and specifications in which has been incorporated accurate "as-built"

details of the Highway Works and all apparatus pipes cables drains sewers

manholes and structures within the Highway Works whether they be in

private or public ownership

1.1.21 the “Final Notice” means the notice issued upon the failure of the

Developer to comply with the Remedial List

1.1.22 the “Health and Safety File” means a file or other record in

permanent form

1.1.23 the “Health and Safety Plan” means the plan prepared as part of

the Health and Safety file

8

FOR I

NFOR

MATIO

N ONL

Y

1.1.24 the “Highway” means the highway as defined under Section 328 of

the 1980 Act

1.1.25 the “Highway Works” means all works to be carried out by the

Developer including but not limited to the installation of the Street Furniture

the Street Lighting the Surface Water Drainage System the Traffic Signal

Equipment and within the area shown for the

purpose of identification only coloured pink on Plan B together with all other

associated works arising out of the Development and the Highway Works as

the Authorised Officer acting reasonably may deem necessary or expedient

1.1.26 the “Inspection Fees” means the Inspection Fees of the Authorised

Officer in the sum of [ ]

1.1.27 the “Maintenance Period” means a minimum period of twelve (12)

months or such other time as the Authorised Officer acting reasonably shall

require from the date of the issue of the Substantial Completion Certificate

1.1.28 the “Payment Period” means the period of 28 days which shall be

taken to include weekends and public and bank holidays

1.1.29 “Plan A” means the drawing numbered annexed

hereto

1.1.30 “Plan B” means the drawing numbered annexed

hereto

1.1.31 “Plan C” means the drawing numbered annexed

hereto

1.1.32 the “Planning Permission” means the Planning Permission for the

Development granted by the Council under Reference: [ ]

1.1.33 the “Principal Designer” means any person for the time being

appointed under the CDM Regulations in relation to the Highway Works

9

FOR I

NFOR

MATIO

N ONL

Y

1.1.34 the “Programme” means a statement of the overall sequence in

which the Highway Works are to be carried out which shall include a general

description of the arrangements and methods of construction which the

Developer proposes to adopt therefore together with an estimate of the

amount of time to be spent by the Developer in carrying out and completing

the Highway Works and which may from time to time (and only with

permission from the Council) be varied to meet the Developer’s programme

for the completion of the Development

1.1.35 the “Remedial List” means a list of all works required to complete

the Highway Works and [the Section 228 Works] including but not limited to

all inspections surveys grant of easements and all other obligations on the

part of the [Developer] [Owner] contained within this Agreement

1.1.36 the “Remedial Works” means, at the expense of the Developer, the

reinstatement of and the making good of any defect in or damage to the

Highway Works [and the Section 228 Works] (which may have arisen from

any cause whatsoever) including any defect in or damage to the Street

Lighting and the Surface Water Drainage System of the Highway or the

Highway Works as may be notified in writing by the Authorised Officer prior

to the issue of either the Substantial Completion Certificate of the Final

Completion Certificate

1.1.37 the “Safety Audit” means the safety audit to be undertaken in

accordance with document HD 19/03 Road Safety Audit Volume 5 Design

Manual for Roads and Bridges published by The Stationery Office unless

specifically instructed in writing by the Authorised Officer in which case the

Safety Audit shall be undertaken in accordance with the Council’s Guidance

Note on the Provision of Safety Audit

10

FOR I

NFOR

MATIO

N ONL

Y

1.1.38 the “Section 228 Fees” means the fees payable to the Council in

order for it to exercise its authority in proceeding with the procedure as set

out in section 228 of the 1980 Act

1.1.39 the “Section 228 Works” means the execution of the specified

works pursuant to the provisions of section 228 of the 1980 Act in accordance

with the specification and the drawings as shown coloured green on [Plan B]

[Plan C] which the Developer has agreed to carry out to enable the Highway

Works to become Highway

1.1.40 the “Site” means all those parcels of land at in

the Parish of in the County of Cornwall shown for the

purpose of identification only edged red on Plan A

1.1.41 the “Statutory Undertakers” means any person company

corporation board or authority whose apparatus is pursuant to a statutory

right or to a licence granted under Section 50 of the 1991 Act at the date of

this Agreement already installed in under over or upon the land on which the

Highway Works are to be carried out PROVIDED THAT such expression shall

include the authorized successor to any such person company corporation

board or authority

1.1.42 the “Street Furniture” means all street furniture and associated

equipment as referenced on Plan A Plan B and Plan C

1.1.43 the “Street Lighting” means all street lighting and associated

equipment as referenced on Plan A Plan B and Plan C

1.1.44 “Structure(s)” means any structure(s) built in under or over any

public highway or public highway to be constructed as part of the Highway

Works where the least internal span dimension is equal to or exceeds 0.9

metres (aggregate spans for multiple pipes/structures) This includes

11

FOR I

NFOR

MATIO

N ONL

Y

amongst others bridges footbridges pipe gantries culverts pipes tunnels

chambers cellars shafts soakaways manholes and storm water balancing

tanks etcetera; or any structure(s) built in or within 3.66 metres of any public

highway or public highway to be constructed as part of the Highway Works

which support(s) any public highway or public highway to be constructed as

part of the Highway Works or ground above it or them and where the

retained height either above or below the said public highway or public

highway to be constructed as part of the Highway Works is 1.4 metres or

more This includes amongst others retaining walls headwalls basements

cellars and reinforced earth where the face is at an angle of 70° or more

etcetera; or miscellaneous structures including projecting or spanning

buildings environmental barriers high mast lighting CCTV masts and portal

and cantilever sign/signal gantries etcetera

1.1.45 the “Substantial Completion Certificate” means the certificate to

be issued pursuant to the clause headed “Substantial Completion”

1.1.46 the “Surety’s Counter-Notice” means a notice issued by the Surety

within 28 days of receipt of the Default Notice which shall contain a full

programme of works including a start date on Site such start date shall be

within FIFTY SIX (56) days of the date of the Default Notice or such other

time period as agreed by the Authorised Officer in his absolute discretion

1.1.47 the “Surface Water Drainage System” means the adoptable

highway drainage as shown in blue on Plan A Plan B and Plan C

1.1.48 the “Traffic Regulation Order Fees” means the sum of [ ]

being the fees payable in respect of the Traffic Regulation Order] [the sum

payable in respect of any Traffic Regulation Order Fee which becomes

12

FOR I

NFOR

MATIO

N ONL

Y

apparent whilst carrying out the Highway Works such sum to be paid by the

Developer within the Payment Period

1.1.49 the “Traffic Signal Equipment” means the traffic signal equipment

and associated equipment as referenced on Plan A Plan B and Plan C

1.2 Where the context so admits the expressions “the Council” “the Owner”

“the Developer” “the Mortgagee” and “the Surety” shall include their

respective successors in title

1.3 Reference in this Agreement to any clause sub-clause paragraph

schedule drawing or plan without further designation shall be a reference to

the clause sub-clause paragraph schedule drawing or plan of (or in the case

of a drawing or plan annexed to) this Agreement so numbered

1.4 Reference to any statute or order shall include any statutory extension

modification or re-enactment thereof and any order regulation or byelaw

made thereunder

1.5 Words importing the singular number only shall include the plural

number and vice versa and words importing any particular gender shall

include masculine feminine and neuter genders

1.6 The headings in this Agreement and the front cover are for

convenience only and shall not be deemed to be part thereof or be taken into

consideration in the interpretation or construction thereof

2. Recitals

2.1 The [Company][Owner][Developer] is registered as proprietor at H M

Land Registry with Freehold Absolute Title under Title No: [ ]

of the Site on which the Development is to be carried out [subject to the

Charge hereinafter mentioned]

13

FOR I

NFOR

MATIO

N ONL

Y

2.2 The Developer enters into this Agreement in order to carry out the

Highway Works [and the Section 228 Works]

2.3 The Council is the local highway authority under the Highways Act

for the area in which the Site is situated and has agreed to enter into this

Agreement with the Developer for the purpose of securing the carrying out of

the Highway Works by the Developer on behalf of and at no cost to the

Council being satisfied that this will be of benefit to the public

2.4 [Subject to the grant of the Permission] the Developer has agreed to

carry out the Highway Works in accordance with the [Permission and the]

terms of this Agreement

2.5 The Mortgagee is the Registered Proprietor of the Charge dated

Referred to in Entry No: [ ] of the Charges Register of the Title Number

above mentioned and has agreed to enter into this Agreement for the

purposes of granting the consent contained in the Clause headed

‘Mortgagee Consent’ and entering into the obligation and granting the

consent contained in the clause headed ‘Dedication’

2.6 The Surety has agreed to enter into this Agreement for the purposes

set out in the Clause headed ‘Surety’s Obligations’

[2.7 The Planning Permission provided that within months of the

commencement of the Development Works certain works should be carried

out to the satisfaction of the Council and in order to comply with the said

condition the Developer [and the Owner] have agreed to enter into this

Agreement with the Council on the terms hereinafter appearing]

[2.8 The Council as Local Highway Authority has advised pursuant to the

Town and Country Planning General Development Order 1988 that the grant

14

FOR I

NFOR

MATIO

N ONL

Y

of planning permission by the Council for the said development should be

restricted]

[2.9 The Council on consideration of the said advice has decided not to

determine the said application for planning permission for the time being]

[2.10 The [Developer] [Owner] is willing to dedicate land and to carry out

the Highway Works as agent for and on behalf of the Council so as to enable

the Council to determine the said application upon the execution of a deed of

agreement relevant thereto between the Developer and the Council]

3. Statutory Provisions

THIS Agreement is made pursuant to Section 278 and Section 38 (in so far as

is necessary for the adoption of the Highway Works) of the 1980 Act Section

33 of the Local Government (Miscellaneous Provisions) Act 1982 Section 111

of the Local Government Act 1972 and all other powers enabling the Council

in that behalf and the covenants on the part of the Developer hereinafter

contained shall be covenants to which the provisions of Section 278 of the

1980 Act and Section 9 of The Cornwall County Council Act 1971 shall apply

and Section 305 of the 1980 Act shall apply to any expenses recoverable by

the Council

4. Enduring Covenant

The Developer and or the Owner admits that the covenants on its/their

respective part(s) contained in this Agreement are intended to annex to and

run with the Site and each and every part of it and to bind the owner or

owners of the site into whosoever hands it may come

15

FOR I

NFOR

MATIO

N ONL

Y

5. Developer’s Covenants

THE Developer hereby covenants with the Council as follows:-

5.1.1 not to begin any Highway Works until such time as this Agreement has

been formally completed in that this Agreement has been duly executed by

all parties and dated appropriately and all conditions as set out by the

Authorised Officer have been complied with

5.1.2 to provide details of the Client and the Principal Designer to the

Authorised Officer prior to commencement of the Highway Works and to

comply with all of the requirements of the CDM Regulations insofar as they

relate to the Developer

5.1.3 to carry out or pay to be carried out such works as may reasonably be

required from time to time by Statutory Undertakers and public utility

companies or by the Council’s Authorised Officer at the request of the

Statutory Undertakers and public utility companies in relation to or in

consequence of the construction of the Highway Works

5.1.4 during the design and execution of the Highway Works the Developer

shall comply with the requirements as detailed in the documents listed in Part

1 and Part 2 of the Schedule and any update or statute relating thereto

enacted on a date on or after the date of execution of this Agreement

5.1.5 to obtain approval from the Authorised Officer to detailed plans and

specifications (including safety audit) for the Highway Works and the relevant

levels drainage road markings and street furniture

5.1.6 prior to completion of this Agreement or within 30 days of receipt of an

invoice in respect of the same (whichever should be the sooner) to pay to the

Council (in addition to any other sums referred to in this Agreement) the

Inspection Fees which sum shall be applied towards the expenses of the

16

FOR I

NFOR

MATIO

N ONL

Y

Council in respect of the consideration and approval of the detailed plans and

specifications the inspection of the Highway Works as they proceed the

testing of materials used or intended for use therein and for the necessary

safety audit checks PROVIDED THAT the provisions of this sub-clause shall

not negate or obviate the Developer's responsibility for ensuring the Highway

Works are carried out in accordance with the detailed plans and specifications

approved by the Council

[5.2 before the Development Works are begun to enter into an Agreement

with the Council under Section 38 of the Highways Act 1980 providing for the

making up and adoption of the roads to be constructed forming part of the

Development Works]

5.3 before the Development Works are [brought into use/commenced] to

complete the Highway Works to the reasonable satisfaction in writing of the

Authorised Officer

5.4 at its own expense to design carry out or arrange to have carried out

and maintain the Highway Works and to make any necessary payments in

accordance with interim certificates issued under any Contract for the

Highway Works

5.5 at its own expense and in compliance with the CDM Regulations and

current Department of Transport Technical Memoranda to produce all

necessary working drawings sections and specifications for contract purposes

5.6.1 not to commence the Highway Works unless a specific programme of

works shall first have been submitted to and approved by the Authorised

Officer regarding the period of construction method of working supervision

and the arrangements for the control of vehicular and pedestrian traffic in the

17

FOR I

NFOR

MATIO

N ONL

Y

vicinity of the Highway Works and thereafter not to deviate from such

programme without the written consent of the Authorised Officer

5.6.2 to procure at its own expense any consents diversions orders or

agreements necessary to enable the Highway Works to be carried out

5.7 to give to the Council's Authorised Officer at Central Group Centre

Castle Canyke Road Bodmin Cornwall PL31 1DZ not less than twenty-one

days' notice in writing of the Developer's intention to set out or commence

the Highway Works or any part thereof and to commence the Highway Works

on a date to be agreed by the Developer and the Authorised Officer and once

started to carry out the Highway Works with all reasonable despatch and to

complete the same before [the Development Works are brought into

use/commenced] [any dwelling to be constructed as part of the Development

Works is occupied] and whenever work thereon shall have been discontinued

for a period exceeding ten working days to give on every occasion not less

than three days' notice in writing to the said Authorised Officer of the

Developer’s intention to recommence the Highway Works

5.8 to carry out each and every part of the Highway Works within the

existing highway in accordance with the New Roads and Street Works Act

1991 the CDM Regulations and the documents produced thereunder by the

Authorised Officer

5.9 whilst the Highway Works are being carried out to maintain two-way

traffic flow on the said road at all times

unless specifically authorised otherwise by the Authorised Officer

5.10 to give notice of the Highway Works in accordance with the 1991 Act

and to be responsible at the Developer's own expense for complying with the

18

FOR I

NFOR

MATIO

N ONL

Y

requirements of the Statutory Undertakers and British Telecommunications

Plc thereunder

5.11 during the progress of the work of setting out and constructing the

Highway Works

5.12.1 to give to the Authorised Officer and any person authorised by him

free access to every part thereof to inspect the same and all materials used

or intended for use therein and if required by the Authorised Officer so to do

to uncover or open up any work to enable the same to be inspected and if so

required to remove any work or materials which are not in accordance with

the said documents and specifications previously referred to or which in the

reasonable opinion of the Authorised Officer are defective and to re-execute

any such work and substitute proper and suitable materials to the reasonable

satisfaction of the Authorised Officer

5.12.2 to carry out at the Developer's expense any laboratory tests required

by the Authorised Officer

5.12.3 to make provision within the land on which the Highway Works are

carried out to ensure that no mud dust or other materials shall be carried on

to adjacent public highways by vehicles and plant leaving such land and any

such mud dust or other materials shall be cleaned immediately to the

satisfaction of the Authorised Officer and at the Developer's expense

5.12.4 to take or procure the taking of all necessary steps to avoid creating

dust nuisance IF in the reasonable opinion of the Authorised Officer the

Developer is not dealing adequately with the control of dust the Developer

shall carry out or procure the carrying out of such additional measures as the

Authorised Officer considers necessary at the Developer's expense

19

FOR I

NFOR

MATIO

N ONL

Y

5.12.5 to keep or procure the keeping of all highways including byways

restricted byways bridleways footpaths and all other public rights of way and

paying particular regard to all private rights of way all roads and private

drives and accesses and land to which the public has access leading to from

or crossing the land on which the Highway Works are carried out free from

mud slurry or other hazardous substances that are deposited through the

construction operations and any such substance deposited by the Developer

or its contractor on any such land shall be immediately removed paying

particular regard to any private rights of way all roads and private drives and

accesses by or at the direction of the Developer at no cost to the Council and

the Authorised Officer shall close such crossings entrances and exits if such

substances deposited are not promptly removed by the Developer and any

losses or expenses incurred as a result shall be borne by the Developer

5.13.1 to provide such samples of materials used or intended to be used in

the Highway Works as may reasonably be required by the Authorised Officer

from time to time for the purpose of testing and to provide all the labour

materials and apparatus for carrying out tests by water on the road gullies

and all of the surface water drains or sewers serving the Highway Works to

the reasonable satisfaction of the Authorised Officer or other appropriate

authority

5.13.2 if so required by the Authorised Officer prior to the laying of the

surface course on the carriageway and footways forming part of the Highway

Works to carry out at the Developer's expense a closed-circuit TV survey of

the surface water drains and to submit a full report thereof to the Authorised

Officer

20

FOR I

NFOR

MATIO

N ONL

Y

5.14.1 to provide to the Council prior to any Highway Works being

commenced the name and address of the Contractor who will carry out such

works such Contractor to be approved by the Council

5.14.2 to ensure that all Highway Works will be carried out in accordance

with this Agreement and in conformity in all respects with the Contract

amended and completed as appropriate to cover the particular circumstances

5.15 prior to completion of this Agreement to:

5.15.1 pay the proper and reasonable costs incurred by the Council in

connection with the preparation and completion of this Agreement

5.15.2 pay the Commuted Sum

5.15.3 pay the Traffic Regulation Order Fees

5.16 prior to the issue of the Final Completion Certificate to pay to the

Council all other sums payable pursuant to this Agreement

6. Council’s Covenants

6.1 Subject to the payment by the Developer of the appropriate fees in

accordance with the provisions of this Agreement any application for approval

submitted to the Authorised Officer shall be determined by him within 28

days of such application being received or fees being paid (whichever shall be

the later) and such approval shall not be unreasonably withheld

6.2 to apply the Commuted Sum to the maintenance of

together with any of the works set out in Part 3 of

the Schedule and for no other purpose whatsoever

[6.3 Subject to no objections being received the Council has agreed that

when the Section 228 Works have been carried out to the Authorised Officer’s

satisfaction and the Section 228 Fees have been paid and PROVIDED that the

21

FOR I

NFOR

MATIO

N ONL

Y

Substantial Completion Certificate has been issued and all the Remedial

Works have been carried out to the Authorised Officer’s satisfaction it will

thereafter commence the procedures set out in section 228 of the 1980 Act

with a view to accepting the Section 228 Works as Highway]

7. Approved Materials

All materials used by the Developer shall comply with the Specification Any

material may be required to be tested and this shall be at the sole expense of

the Developer and at a testing laboratory approved by the Council Any

materials rejected by the Authorised Officer shall not be used by the

Developer for any of the Works Should the Developer require or wish to use

any materials not compliant with the Specification it must pay for the testing

of any such materials as requested by the Council and thereafter obtain the

prior written approval of the Authorised Officer whose decision of whether

any such materials can be used will be final

8. Grant of Easements

Simultaneously with completion of this Agreement (or should circumstances

arise that require a Grant of Easement following completion of this

Agreement but prior to the issue of the Final Completion Certificate) the

Owner and/or Developer shall without cost to the Council execute and

complete or procure the execution and completion by all necessary parties

(for the avoidance of doubt this shall include direct with the Council) of such

deeds as are in the opinion of the Council necessary to secure to the Council:

(i) full drainage rights and rights of access and egress for maintenance

and renewal in respect of such part or parts of the Surface Water Drainage

22

FOR I

NFOR

MATIO

N ONL

Y

System (including soakaways) that have been sited outside the limits of the

Highway

(ii) full rights of access and egress as may be required by the Council for

the future maintenance and renewal by the Council of any Street Furniture

Street Lighting and Traffic Signal Equipment that have been sited outside the

limits of the Highway

and the Owner or the Developer shall pay the Council’s legal costs and

disbursements in connection with such deeds of easement and the Council

shall not be liable for the payment of compensation or legal or any other

costs or fees arising on account of the completion of any such deeds For

clarification the Final Completion Certificate will not be issued until all

necessary deeds of easement as required by the Authorised Officer in his

absolute discretion have been entered into and all legal costs and expenses

of the Council in respect thereof have been paid

9. Access to the Highway

The Council without prejudice to its statutory powers and duties hereby gives

to the Developer licence to enter and to remain upon with or without

workmen plant and machinery so much of the Highway under the Council’s

control as the Authorised Officer shall agree is reasonably necessary for the

Developer to carry out its obligations under this Agreement and it is hereby

agreed and declared that such licence extends to breaking open (subject

where appropriate to making good its surface) and without limitation to the

foregoing carrying out works in on or under the said Highway PROVIDED

ALWAYS that the Clause headed “Developer’s Covenants” of this

Agreement have been fully complied with

23

FOR I

NFOR

MATIO

N ONL

Y

10. Traffic Control

During the period when the Highway Works are being executed the Developer

shall from time to time institute at its own expense reasonable measures

approved by the Authorised officer (before their implementation) to maintain

the flow and safety of traffic and pedestrians on the Highway in the vicinity of

the site of the Highway Works and shall use reasonable endeavours to

procure that contractors site traffic in respect of the Highway Works and the

Development shall adhere to such route or routes when approaching or

departing from the Site of the Highway Works as may from time to time be

agreed with the Council

11. Road Safety

During the period over which the Highway Works are being executed the

Developer shall comply with the provisions of Chapter 8 of the Department of

Transport’s Road Traffic Signs Manual 2002 and any amendment thereto for

lighting and signing the Highway Works and any further reasonable

requirements of the highway authority

12. Indemnity

The Developer on behalf of himself and his successors in title hereby fully

indemnifies and keeps indemnified:-

12.1 the Council and all persons authorized by it in respect of all actions

liabilities claims demands and proceedings arising out of or in connection with

24

FOR I

NFOR

MATIO

N ONL

Y

or incidental to the carrying out of the Highway Works or the provisions of

this Agreement; and

12.2 the Council in respect of any and all actions liabilities claims demands

proceedings or expenses arising out of or in connection with the use of the

Highway as modified by the Highway Works (including for the avoidance of

doubt but not limited to claims under Parts I and II of the Land Compensation

Act 1973 and the Noise Insulation Regulations 1975) which may be made at

any time in connection with or incidental to the carrying out of the Highway

Works unless such claim arises exclusively as a consequence of any negligent

act default or omission of the Council

13. Substantial Completion and Dedication

13.1 within 28 working days of receiving from the Developer notice that the

Highway Works have been completed the Authorised Officer shall arrange an

inspection of the Highway Works including the Road Safety Audit 3 and

PROVIDED THAT the Authorised Officer is satisfied that such Highway Works

have been completed a Substantial Completion Certificate shall be issued to

the Developer

13.2 upon the issue of the Substantial Completion Certificate:

13.2.1 the [Owner] [Developer] shall in consideration of these presents

forthwith GIVE UP AND DEDICATE [and the Mortgagee shall release] to the

public the Dedicated Land TO THE INTENT that the said piece of land shall be

added to and form part of the public highway PROVIDED THAT neither the

Highway Works nor the Dedicated Land shall be regarded as being highway

or highways maintainable at the public expense until the issue of the Final

Certificate

25

FOR I

NFOR

MATIO

N ONL

Y

13.2.2 the Developer shall remain the Street Manager in respect of both the

Dedicated Land and the Highway Works for the purposes of Section 49(4) of

the 1991 Act until the date of issue of the Final Certificate

13.2.3 the [Owner][Developer] [and the Mortgagee] consent[s] to the

Council applying to the Chief Land Registrar for entry of notice of the

dedication contained in the clause headed “Substantial Completion and

Dedication” in the Charges Register of the said title no: CL on

issue of the Substantial Completion Certificate

13.3 the Authorised Officer will authorise the reduction of the Bond/the

repayment of the Deposit by seventy five per centum (75%) of the Bond

Figure/Cash Deposit

14. Maintenance Period

14.1 The Developer shall at its own expense maintain the Highway Works

[and the Section 228 Works] and the Dedicated Land for the Maintenance

Period and upon the expiration of such period the Developer shall forthwith

reinstate and make good any defects or damage due to faulty survey design

materials or workmanship which may have arisen or be discovered during

such period (including any defect in or damage to the highway surface water

drainage system) to the satisfaction of the Authorised Officer

14.2 The Developer shall at all times during the maintenance period make

the Health and Safety File available for inspection by the Council on request

15. Certification and Adoption of the Highway Works

When the Highway Works (including any and all remedial works) have been

completed to the satisfaction of the Authorised Officer then PROVIDED THAT:

26

FOR I

NFOR

MATIO

N ONL

Y

15.1 the Developer has delivered to the Cornwall Council the Health and

Safety File together with three sets of drawings to the satisfaction of

the Authorised Officer showing to a scale of 1:500 (or such other scale

as requested by the Authorised Officer) a copy of the Final Drawings of

the Highway Works

15.2 any Commuted Sum has been paid

15.3 all costs (including legal costs inspection fees and traffic regulation

order fees but not limited to these) as incurred by the Council in

connection with this development have been paid

15.4 all the drains and sewers constructed in or under the Highway Works

or any part or parts thereof are subject to an agreement or

agreements under Chapter II of Part IV of the Water Industry Act 1991

and any other surface water drain or sewer serving the said road or

the Highway Works or any part or parts thereof has been adopted or is

the subject of such an agreement

15.5 the Developer shall have first complied with all the provisions of this

Agreement to the satisfaction of the Council

the Authorised Officer shall issue a Final Completion Certificate (which may in

his discretion be confined to any part of the Highway Works and shall have

effect accordingly) and whereupon that part of the Highway Works together

with the Dedicated Land shall be thereafter maintained by the Council at the

public expense

16. Option

16.1 If called upon so to do by the Council before the expiration of twenty-

one years from the date hereof the Developer or its successors in title and all

27

FOR I

NFOR

MATIO

N ONL

Y

other necessary parties (if any) shall transfer the said piece of land to the

Council for an unencumbered estate therein in fee simple free from

incumbrances and in respect of such transfer the Council shall pay a

consideration of One Pound

16.2 The [Owner][Developer] [and the Mortgagee] consent[s] to the Council

applying to the Chief Land Registrar for entry of notice of the option

contained in the clause headed “Option” in the Charges Register of the said

title no: CL

17. Power to Execute Works in Default

17.1 If any of the Highway Works are not carried out or not made good to

the reasonable satisfaction of the Authorised Officer the Council may require

the Developer to carry out or complete or make good the Highway Works

within such reasonable time (except in the case of emergency when no notice

from the Council to the Developer shall be required) as may be specified in

the Remedial List sent by recorded delivery post to the Developer at the

address stated in this Agreement or other such address as the Developer may

have notified to the Council

17.2 If the requirements of the Remedial List are not complied with during

the period therein mentioned the Council will be entitled to issue the Final

Notice to the Developer informing it that its failure to comply with the

provisions of such Final Notice will result in the Council issuing a Default

Notice

Or

issue the Final Notice to the Developer copies of which the Council shall send

to [the owner][the Surety] informing them of the failure of the Developer to

28

FOR I

NFOR

MATIO

N ONL

Y

comply with the provision of the Remedial List and putting them on notice

that the provisions of the clause headed ‘Surety’s Obligations’ may be

implemented

and the Authorised Officer shall not be required to issue the Substantial

Completion Certificate or the Final Completion Certificate until all such works

have been executed and the cost of any works carried out by the Council has

been paid by or on behalf of the Developer/Surety

17.3 The proper and reasonable costs of the Council in exercising its rights

referred to within the clause headed “Power to Execute Works in Default”

above shall be recoverable from the Developer and/or the Surety including

the recovery of costs payable by the Council to a third party (including but

not limited to the consideration payable and legal fees of any third party for

an easement in respect of highway surface water drains (including

soakaways) sited on third party land and such other easements as may be

required by the Council for the future maintenance of any structure forming

part of the Highway Works as constructed) should this be required

17.4 If before the expiry of the Notice Period the Developer shall serve

written notice upon the Council that the Developer intends forthwith to

execute and/or to complete the Highway Works specified in the notice served

by the Council under the clause headed “Power to Execute Works in

Default” hereof in accordance with the terms of this Agreement the Council

shall not be entitled to execute or to complete such Highway Works unless

the Developer then fails to execute and/or complete them in accordance

which the aforesaid Notice

18. Surety's Obligations

29

FOR I

NFOR

MATIO

N ONL

Y

18.1 If the Developer at any time fails to perform or observe any of the

conditions stipulations or obligations on its part contained in this Agreement

or if a receiving order in bankruptcy is made in respect of the legal estate of

the Developer or if the Developer's business or partnership is being wound up

or dissolved as the case may be or is put into administration or receivership

or if the Developer is insolvent or enters into a composition or scheme of

arrangement (otherwise than for the purpose of reconstruction or

amalgamation) the Council may without prejudice to any of its statutory

rights or powers or any other right claim or remedy under this Agreement

send to the Surety the Default Notice

18.1:1 specifying the Default Works to be carried out in order that the Works

may be executed or completed as the case may be in accordance with this

Agreement and

18.1:2 containing an estimate by the Authorised Officer of the Default Costs

which cost excluding value added tax

(i) shall not exceed the sum of POUNDS (£

) initially being the total estimated cost of the Works

(ii) shall not exceed the sum of POUNDS (£

) on and after the issue of the Substantial Completion Certificate

being twenty five per cent of the estimated costs of the Works

18.2 For the avoidance of doubt the Council is entitled to make more than

one demand under this Clause subject to the total of all sums demanded not

exceeding the sum referred to in sub-clause (i) above

18.3. Within twenty-eight days after the Surety has received the Default

Notice the Surety shall EITHER

18.2:1 pay the Default Cost to the Council OR

30

FOR I

NFOR

MATIO

N ONL

Y

18.2:2 send to the Council the Surety's Counter-Notice

18.3 If the Surety having sent the Surety's Counter-Notice to the Council

fails to start the Default Works in compliance with the terms of the Surety’s

Counter-Notice the Surety shall forthwith pay the Default Cost to the Council

with simple interest thereon calculated from the date on which the Surety

received the Default Notice at the rate of two per cent (2%) above the Base

Rate of Interest of the Council's bank such rate of interest to be determined

by reference to the said Base Rate of Interest published in the Financial

Times on the day of receipt of the Default Notice and thereafter from day to

day in accordance with variations to the said Base Rate published as

aforesaid

18.4 If the Surety having sent the Surety's Counter-Notice to the Council

starts the Default Works and the Default Works are not completed within four

months after the date of the Default Notice or within such further period as

may be agreed by the Authorised Officer the Surety shall subject to sub-

clause 18.5 hereof forthwith on written demand pay to the Council such sum

as the Authorised Officer may determine as being the cost of carrying out any

Default Works not carried out by the Surety and/or the cost of maintaining

the Highway Works [and the Section 228 Works] for a period of twelve

months or such other time period as stated by the Authorised Officer in his

absolute discretion prior to the Highway Works becoming maintainable at the

public expense as may be the case (or as being the cost of both) and also

pay to the Council the amount determined by the Authorised Officer as being

the amount of the reasonable administration and legal charges of the

Cornwall Council

31

FOR I

NFOR

MATIO

N ONL

Y

18.5 The sum payable under sub-clause 18.4 hereof excluding Value Added

Tax shall not exceed the Default Cost and the covenant in the Clause headed

‘Council’s Covenants’ shall apply with respect to such sum and on the issue

of the Final Certificate the Surety shall be released from all liability hereunder

18.6 For the purpose of this Agreement a demand stated to be made

hereunder and signed or purportedly signed by or on behalf of the Authorised

Officer shall be conclusive as to the Surety's obligation to pay the Default

Cost to the Council

18. Cash Deposit

18.1 If the Developer at any time fails to perform or observe any of the

conditions stipulations or obligations on its part contained in this Agreement

or if a receiving order in bankruptcy is made in respect of the legal estate of

the Developer or if the Developer's business or partnership is being wound up

or dissolved as the case may be or is put into administration or receivership

or if the Developer is insolvent or enters into a composition or scheme of

arrangement (otherwise than for the purpose of reconstruction or

amalgamation) the Council may without prejudice to any of its statutory

rights or powers or any other right claim or remedy under this Agreement

send to the Developer or its administrators (if any) the Default Notice

18.1:1 specifying the Default Works to be carried out in order that the Works

may be executed or completed as the case may be in accordance with this

Agreement and

18.1:2 containing an estimate by the Authorised Officer of the Default Costs

which cost excluding value added tax

32

FOR I

NFOR

MATIO

N ONL

Y

(i) shall not exceed the sum of POUNDS (£

) initially being the total estimated cost of the Works

(ii) shall not exceed the sum of POUNDS (£

) on and after the issue of the Substantial Completion Certificate

being twenty five per cent of the estimated costs of the Works

18.2 For the avoidance of doubt the Council is entitled to make more than

one demand under this clause subject to the total of all sums demanded not

exceeding the sum referred to in sub-clause (i) above

18.3. Within twenty-eight days after the Developer or its administrators has

received the Default Notice the Developer or its administrators shall send to

the Council the Developer’s Counter-Notice

18.4 If the Developer or its administrators fail to send the Developer’s

Counter-Notice in compliance with sub-clause 18.3 or having sent the

Developer’s Counter-Notice to the Council fails to start the Default Works in

compliance with the terms of the Developer’s Counter Notice the Council will

apply the Cash Deposit together with interest accrued thereon as aforesaid to

the cost of carrying out any Default Works not carried out by the Developer

and/or the cost of maintaining the Highway Works [and the Section 228

Works] for a period of twelve months or such other time period as stated by

the Authorised Officer in his absolute discretion prior to the Highway Works

[and the Section 228 Works] becoming maintainable at the public expense as

may be the case (or as being the cost of both) and also pay to the Council

the amount determined by the Authorised Officer as being the amount of the

reasonable administration and legal charges of the Cornwall Council

18.5 The total sum retained and applied under sub-clause 18.4 hereof

excluding Value Added Tax shall not exceed the Default Cost and the

33

FOR I

NFOR

MATIO

N ONL

Y

covenant in the Clause headed ‘Council’s Covenants’ shall apply with

respect to such sum and on the issue of the Final Certificate the Developer

shall be released from all liability hereunder

18.6 For the purpose of this Agreement a demand stated to be made

hereunder and signed or purportedly signed by or on behalf of the Authorised

Officer shall be conclusive as to the Council’s absolute right to implement the

provisions of the Clause headed ‘Cash Deposit’

19. Release of the Bond/Cash Deposit

As soon as is reasonably practicable after the issue of the Final Completion

Certificate the Council will release the Bond/ repay the balance of the Cash

Deposit to the Developer

20. Notices

Any notice or other written communication to be served by one party upon

another pursuant to the terms of this Agreement shall be deemed to have

been validly served if delivered by hand or sent by prepaid registered or

recorded delivery post to the party to be served at its address as may from

time to time be notified for the purpose by notice in writing AND any such

notice or other written communication to be given by the Council shall be

deemed valid and effectual if on its face value it is signed on behalf of the

Council by an officer or duly authorised signatory thereof

34

FOR I

NFOR

MATIO

N ONL

Y

21. Determination

The Council shall have the right to determine this Agreement and recover the

costs of completing the Highway Works (including all legal costs and

expenses howsoever incurred) from the Developer and/or the Surety

21.1 If the Highway Works shall not have commenced within 12 months of

the date hereof

21.2 if the Developer shall fail or omit within twenty-eight days to comply

with a notice complaining of the Developer's failure or omission to perform or

observe any of the covenants or agreements on its part herein contained or

in the specifications and documents previously referred to or duly and

regularly to proceed with the Highway Works to the reasonable satisfaction of

the Authorised Officer

21.3 Any such notice given by the Council shall be in writing signed by its

Authorised Officer and delivered to the Developer or sent by post to the

address stated in the Agreement or such other address as aforesaid and shall

be without prejudice to any of the Council's rights claims or remedies against

the Developer for any such non-performance or non-observance and without

prejudice to the rights and remedies of the Council heretofore mentioned

21.4 The parties hereto agree that upon determination of this Agreement

pursuant to sub clauses 21.1 and/or 21.2 above the Developer must vacate

the public highway having made the same safe and the cost of reimbursing

the Council for finishing the Highway Works and/or reinstating the public

highway shall be reimbursed from the Bond/Cash Deposit

35

FOR I

NFOR

MATIO

N ONL

Y

22. Interest on Overdue Payments

In the event of any delay in the making of any payment required to be made

by the Developer to the Council under this Agreement interest shall be

payable thereon at the rate of three per cent above the National Westminster

Bank plc base lending rate from time to time in force from the due date to

the date of the actual payment

23. Mortgagee Consent

The Mortgagee joins herein to consent to the terms of this Agreement but

without liability save for the obligations and consent contained in the clause

headed “Substantial Completion and Dedication” and save in the event

that the Mortgagee becomes successor in title to the

[Developer][Owner][Company] at any time before the obligations on the part

of the [Developer][Owner][Company] contained in this Agreement have been

performed in full

24. Insurance

24.1 Without in any way limiting the Developer’s responsibilities and

liabilities under this Agreement the Developer shall take out and maintain (or

shall procure that the Contractor shall take out and maintain) and whenever

so required shall produce to the Authorised Officer satisfactory evidence that

it has so taken out and maintained insurances:

(a) against all liability (whether at common law or under statute) in

respect of injury (fatal or otherwise) to persons employed or engaged

in the execution of the Highway Works; and

36

FOR I

NFOR

MATIO

N ONL

Y

(b) against all third party risks (in respect of persons or property including

employees of the Council) arising out of or incidental to the Highway

Works to the extent of not less than Five Million Pounds

(£5,000,000.00) for any one claim

24.2 The insurances referred to in clause 24.1 above shall be effected with

reputable insurance companies and shall be continued until the issue of the

Final Completion Certificate or sooner determination of this Agreement Every

Policy of insurance so effected as aforesaid shall be in terms as to indemnify

fully the Council from any claim or demand made against it in respect of any

accident injury or damage either to persons or property and from such costs

charges or expenses incurred by the Council in consequence of such claim or

demand

24.3 If the Developer shall fail upon written request to produce to the

Council’s Authorised Officer satisfactory evidence that there is in force the

insurances which it is required to effect under the terms of this Agreement

then in any such case the Council may as agent for and on behalf of the

Developer effect and keep in force any such insurance and pay such premium

or premiums as may be necessary for that purpose and from time to time to

recover the costs charges expenses of so doing from the Developer from the

Bond/Cash Deposit

24.4 Whenever insurance is arranged in the joint names of the parties or on

terms containing provisions for indemnity to principals the party effecting

such insurance shall procure that the subrogation rights of the insurers

against the other party are waived and that such policy shall permit either

the co-insured or the other party to the Agreement as the case may be to be

37

FOR I

NFOR

MATIO

N ONL

Y

http:5,000,000.00

joined to and be a party to any negotiations litigation or arbitration upon the

terms of the policy or any claim thereunder

25. Final Site Clearance

On completion of the Highway Works the Developer shall clear away and

remove from the site of the Highway Works all constructional plant surplus

material rubbish and temporary works of every kind and leave the site of the

Highway Works in a workmanlike condition

26. Dispute Resolution

26.1 An Expert is a person appointed in accordance with this clause to

resolve any dispute or difference arising between the parties hereto touching

or concerning any matter or thing arising out of this Agreement (other than a

dispute or difference touching or concerning the meaning or construction of

this Agreement)

26.2 The parties shall agree on the appointment of an independent Expert

and shall agree with the Expert the terms of his appointment

26.3 If the parties are unable to agree on an Expert or the terms of his

appointment within seven days of either party serving details of a suggested

expert on the other, either party shall then be entitled to request the

President for the time being of the Institute of Highway Engineers to appoint

an Expert being a Fellow of the Institute of Highway Engineers with

experience in highway agreements pursuant to section 278 of the Highways

Act 1980

38

FOR I

NFOR

MATIO

N ONL

Y

26.4 The Expert is required to prepare a written decision and give notice

(including a copy) of the decision to the parties within a maximum of three

months of the matter being referred to the Expert

26.5 If the Expert dies or becomes unwilling or incapable of acting, or does

not deliver the decision within the time required by this clause then:

(a) either party may apply to President for the time being of the Institute

of Highway Engineers to discharge the Expert and to appoint a replacement

Expert with the required expertise; and

(b) this clause shall apply to the new Expert as if he were the first Expert

appointed

26.6 All matters under this clause must be conducted, and the Expert’s

decision shall be written, in the English language

26.7 The parties are entitled to make written submissions to the Expert and

will provide (or procure that others provide) the Expert with such assistance

and documents as the Expert reasonably requires for the purpose of reaching

a decision

26.8 To the extent not provided for by this clause, the Expert may in his

reasonable discretion determine such other procedures to assist with the

conduct of the determination as he considers just or appropriate , including

(to the extent he considers necessary) instructing professional advisers to

assist him in reaching his determination

26.9 Each party shall with reasonable promptness supply each other with all

information and give each other access to all documentation and personnel

and/or things as the other party may reasonably require to make a

submission under this clause

39

FOR I

NFOR

MATIO

N ONL

Y

26.10 The Expert shall act as an expert and not as an arbitrator. The Expert

shall determine any dispute or difference arising between the parties hereto

touching or concerning any matter or thing arising out of this Agreement

(other than a dispute or difference touching or concerning the meaning or

construction of this Agreement) which may include any issue involving the

interpretation of any provision of this Agreement, his jurisdiction to

determine the matters and issues referred to him and/or his terms of

reference. The Expert’s written decision on the matters referred to him shall

be final and binding on the parties in the absence of manifest error or fraud

26.11 The Expert's fees and any costs properly incurred by him in arriving at

his determination (including any fees and costs of any advisers appointed by

the Expert) shall be borne by the parties [equally or in such other proportions

as the Expert shall direct

26.12 All matters concerning the process and result of the determination by

the Expert shall be kept confidential among the parties and the Expert

26.13 Each party shall act reasonably and co-operate to give effect to the

provisions of this clause and otherwise do nothing to hinder or prevent the

Expert from reaching his determination

27. Disposition

27.1 Upon a transfer of either the whole or part of any of the area coloured

pink on Plan C the [Developer][Owner] shall procure that the Transferee

and/or the Lessee shall by deed covenant with the Council to perform the

[Developer’s][Owner’s] covenants and all other obligations of the

[Developer][Owner] contained in this Agreement (including consenting to the

entry of the restriction referred to in Clause 27.2 below)

40

FOR I

NFOR

MATIO

N ONL

Y

27.2 The [Developer][Owner] consents to the entry of the following

restriction against the [Developer’s][Owner’s] title to the Site at H M Land

Registry following the registration of this Agreement and shall provide the

Council with all necessary assistance and/or documentation to permit entry of

the restriction

“No transfer of the part of the registered estate shown coloured pink on the

plan attached to this RX1 by the Proprietor of the registered estate or by the

proprietor of any registered charge, not being a charge registered before the

entry of this restriction, is to be registered without a certificate signed by the

Cornwall Council of Legal Services New County Hall Treyew Road Truro

Cornwall TR1 3AY or their conveyancer that the provisions of Clause 27.1 of a

Section 278 Agreement dated made between (1) The

Cornwall Council have been complied with

or that they do not apply to the disposition”

27.3 The [Developer][Owner] shall be responsible for the Council’s

reasonable legal fees in respect of any Deed of Covenant/Consent required

28. Assignment

THIS Agreement shall not be assigned by any one of the parties hereto

without the written consents of all of the other parties hereto none of which

consents shall be withheld unreasonably

29. The Contracts (Rights of Third Parties) Act 1999

A person who is not a party to this Agreement has no rights under The

Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this

41

FOR I

NFOR

MATIO

N ONL

Y

Agreement but this does not affect any right or remedy of a third party which

exists or is available apart from such Act

30. Miscellaneous

THE provisions of this Deed (other than those contained in this clause) shall

not have any effect until this Deed has been dated

IN WITNESS whereof the parties hereto have executed this Agreement as a

Deed the day and year before written

THE SCHEDULE hereinbefore referred to:

Part 1

1. H.M.S.O. Manual of Contract Documents for Highway Works 1992 and

successive amendments thereafter

2. H.M.S.O. Design Manual for Roads and Bridges 1992 and successive

amendments thereafter

3. Cornwall Design Guide 2001

Part 2

1. New Roads and Street Works Act 1991 and successive amendments

thereafter

2. Traffic Sensitive Commuter and Seasonal Routes as shown on the

Cornwall Council Interactive Mapping Site

3. New Roads and Street Works Reinstatement Categories (New Roads

and Street Works Act 1991)

42

FOR I

NFOR

MATIO

N ONL

Y

Part 3

To include but not limited to

1. Soakaways

2. Permeable paving

3. Attenuation features & associated control systems

4. Oil interceptors

5. Suds features, ie ponds, swales, etc

6. Non standard surfacing, for example

(a) High friction surfacing where required for aesthetic

reasons only

(b) Pigmented surfacing

(c) Non standard block paving

7. Street furniture

8. Amenity fencing

9. Trees

10. Planted areas

11. Structures, for example

(a) Bridges

(b) Retaining structures

(c) Cornish hedges

12. Non standard streetlighting

13. Traffic signals including variable message signs and such similar

signs

14. Any other non standard items

15. As Built Survey

43

FOR I

NFOR

MATIO

N ONL

Y

EXECUTED as a DEED by ) THE CORNWALL COUNCIL ) whose Common Seal was hereunto ) affixed in the presence of: )

…………………………………………………….Authorised Officer

…………………………………………………….Name of Authorised Officer

EXECUTED as a DEED by ) ) )

whose Common Seal was ) hereunto affixed in the presence of )

44

FOR I

NFOR

MATIO

N ONL

Y

Section 278 Agreement (developer constructing)DATED 20. THE CORNWALL COUNCIL and D EE D O F A G RE E ME N T made pursuant to Sections 278 [and 38] of the Highways Act 1980. Section 9 of The Cornwall County Council Act 1971 .Section 111 of the Local Government Act 1972. and all other enabling powers relating to .highway works on and adjoining the .in the County of Cornwall .Head of Legal Services Legal Services County Hall Truro Cornwall TR1 3AY Index TableTR Contents

1. 1. Definitions and Interpretations

2.2. Recitals

3.3. Statutory Provisions

4.4. Enduring Covenant

5. 5. Developer’s Covenants

6. 6. Council’s Covenants

7. 7. Approved Materials

8. 8. Grant of Easements

9. 9. Access to the Highway

10.10. Traffic Control

11.11. Road Safety

12.12. Indemnity

13. 13. Substantial Completion and Dedication

14.14. Maintenance Period

15. 15. Certification and Adoption of the Highway Works

TR16. Option

TR17. Power to Execute Works in Default

TR18. Surety’s Obligations/Cash Deposit

TR19. Release of the Bond/Cash Deposit

TR20. Notices

TR21. Determination

TR22. Interest on Overdue Payments

TR23. Mortgagee Consent

TR24. Insurance

TR25. Final Site Clearance

TR26. Dispute Resolution

TR27. Disposition

TR28. Assignment

TableTR29. The Contracts (Rights of Third Parties) Act 1999

TR30. Miscellaneous

TR The Schedules

is made the day of Two thousand and of County Hall Truro Cornwall TR1 3AY (hereinafter called “the Council”) of the first part and THIS DEED OF AGREEMENT BETWEEN THE CORNWALL COUNCIL

whose Registered Office is situate at (hereinafter called “the [Owner][Company]”) of the second part and (hereinafter called “the Developer”) of the third part and (hereinafter called “the Mortgagee”) of the fourth part and (hereinafter called “the Surety”) of the fifth part 1.1. Definitions and Interpretation

1.1 In this Agreement the following expressions (arranged in alphabetical order and in certain instances incorporating in their definitions expressions defined elsewhere in this Clause) shall have the meanings set out below:- 1.1.1 the “1980 Act” means the Highways Act 1980 1.1.1 the “1980 Act” means the Highways Act 1980 1.1.2 the “1991 Act” means the New Roads and Street Works Act 1991 1.1.3 the “Authorised Officer” means the Council’s Authorised Officer and shall be deemed to mean the officer of the Council from time to time holding that appointment or (if no officer holds that appointment) the person carrying out the duties of that appointment or such suitably qualified person as he may from time to time nominate

1.1.4 the “Bond Figure” means the sum of [ 1.1.4 the “Bond Figure” means the sum of [ ] pounds (£[ ])

1.1.4 the “Cash Deposit” means the sum of [ ] 1.1.4 the “Cash Deposit” means the sum of [ ] (£ ) which shall attract simple interest calculated from the date of this Agreement at the rate of below ONE-HALF OF ONE PERCENT (0.5%)

the prevailing Base Rate of Interest payable by the Council’s bank such rate of interest published in the Financial Times on the date of this Agreement and thereafter from day to day in accordance with variations to the said Base Rate published as aforesaid 1.1.5 the “CDM Regulations” means The Construction (Design and Management) Regulations 2015 or as amended 1.1.6 the “Client” means any person for the time being appointed under the CDM Regulations in relation to the Highway Works

1.1.7 the “Commuted Sum” means the sum of [ ] pounds 1.1.7 the “Commuted Sum” means the sum of [ ] pounds (£ ) estimated by the Authorised Officer (acting reasonably) as being the amount required for the future maintenance of the [ ]. Should (prior to the issue of the Final Completion Certificate) the Authorised Officer acting reasonably require further sums to be paid to the Council towards the estimated costs of maintaining the [ ] together with any of the works set out in Part 3 of the Schedule such sum shall be paid by the Developer within the Payment Period 1.1.8 the “Council” includes its successors in title or other person or body having the responsibility for the exercise of the functions of the principal highway authority for the county of Cornwall from time to time and for the time being

1.1.9 the “Dedicated Land” means all that piece of land containing an 1.1.9 the “Dedicated Land” means all that piece of land containing an area of [ ] square metres or thereabouts situate adjoining the road known as [ ] in the County of Cornwall which said piece of land is more particularly delineated and shown coloured pink on Plan 'C' 1.1.10 the “Default Costs” (including but not limited to) an estimate of the costs of:-(i) (i) (i) any and all surveys in order to establish exactly what Highway Works remain outstanding (which will be the subject of an interim claim)

(ii) (ii) carrying out of any Highway Works (but not those works revealed by any necessary surveys which will be subject to a further claim should this be necessary) including the costs of any licences consents and the like that may be required to undertake the Highway Works

(iii) the preparation of (including any necessary surveys) the Final Drawings (iv) (iv) (iv) the maintenance of the Highway Works [and the Section 228 Works] for a period of twelve months or such other time as deemed reasonable by the Authorised Officer prior to the Highway Works becoming maintainable at the public expense and also including the recovery of costs

(v) (v) the legal costs and administration costs incurred by the Council in the preparation and administration of all Notices issued together with all legal and administration costs incurred in the implementation of the provisions pursuant to the Clauses headed “Power to Execute Works in Default” and “Surety’s Obligations/Cash Deposit”

(vi) (vi) the costs payable by the Council to a third party (including but not limited to the consideration payable to and legal fees of any third party for any easement required in respect of the Street Furniture the Street Lighting

the Surface Water Drainage System (including soakaways) and the Traffic Signal Equipment sited on third party land and such other easements as may be required by the Council for the future maintenance of any structure forming part of the Works as constructed) if required (vii) an amount due for any unpaid Inspection Fees and Commuted Sums owing to the Council (viii) the repayment of any amount expended by the Council in undertaking any emergency work required to the proposed Road or Roads prior to them becoming highways maintainable at the public expense 1.1.11 the “Default Notice” means the notice issued on failure of the Developer to comply with the Final Notice 1.1.12 the “Default Works” means those works listed in the Remedial List and any outstanding obligations on the part of the Developer under this Agreement and considered by the Authorised Officer in his absolute discretion required to bring the Road or Roads up to adoptable standard 1.1.13 the “Design” means the design and scheme of works prepared by the Developer for the carrying out of the Highway Works 1.1.14 the “Developer” includes its successors in title and all persons deriving title under or through it and having any legal estate interest right or title in or to the Site or any part or parts of it 1.1.15 the “Developer’s Counter-Notice” means a Notice issued by the Developer within 28 days of receipt of the Default Notice which shall contain a full programme of works including a start date on Site which start date shall be within days of the date of the Default Notice or such other time period as agreed by the Authorised Officer in his absolute discretion FIFTY-SIX (56)

1.1.16 the “Development Works” means the development of the Site as a 1.1.16 the “Development Works” means the development of the Site as a and all other things ancillary thereto including all water road water drainage systems and shall (where the context so admits) mean any part or parts of them 1.1.17 the “Drawings” means Plans ‘A’ ‘B’ and ‘C’ as defined below together with such other drawings approved by or on behalf of the Authorised Officer 1.1.18 the “Expert” means a person appointed in accordance with the clause headed ‘Dispute Resolution’ to resolve any dispute or difference arising between the parties hereto touching or concerning any matter or thing arising out of this Agreement (other than a dispute or difference touching or concerning the meaning or construction of this Agreement) 1.1.19 the “Final Completion Certificate” means the certificate to be issued pursuant to the clause headed “Certification and Adoption of the Road Works” 1.1.20 the “Final Drawings” means the most recent issue of the detailed plans and specifications in which has been incorporated accurate "as-built" details of the Highway Works and all apparatus pipes cables drains sewers manholes and structures within the Highway Works whether they be in private or public ownership 1.1.21 the “Final Notice” means the notice issued upon the failure of the Developer to comply with the Remedial List 1.1.22 the “Health and Safety File” means a file or other record in permanent form 1.1.23 the “Health and Safety Plan” means the plan prepared as part of the Health and Safety file 1.1.24 the “Highway” means the highway as defined under Section 328 of the 1980 Act 1.1.25 the “Highway Works” means all works to be carried out by the Developer including but not limited to the installation of the Street Furniture the Street Lighting the Surface Water Drainage System the Traffic Signal Equipment and within the area shown for the purpose of identification only coloured pink on Plan B together with all other associated works arising out of the Development and the Highway Works as the Authorised Officer acting reasonably may deem necessary or expedient

1.1.26 the “Inspection Fees” means the Inspection Fees of the Authorised 1.1.26 the “Inspection Fees” means the Inspection Fees of the Authorised Officer in the sum of [ ] 1.1.27 the “Maintenance Period” means a minimum period of twelve (12) months or such other time as the Authorised Officer acting reasonably shall require from the date of the issue of the Substantial Completion Certificate 1.1.28 the “Payment Period” means the period of 28 days which shall be taken to include weekends and public and bank holidays 1.1.29 “Plan A” means the drawing numbered 1.1.29 “Plan A” means the drawing numbered 1.1.29 “Plan A” means the drawing numbered annexed

hereto hereto

1.1.30 “Plan B” means the drawing numbered1.1.30 “Plan B” means the drawing numbered annexed

hereto hereto

1.1.31 “Plan C” means the drawing numbered annexed hereto 1.1.32 the “Planning Permission” means the Planning Permission for the Development granted by the Council under Reference: [ ] 1.1.33 the “Principal Designer” means any person for the time being appointed under the CDM Regulations in relation to the Highway Works 1.1.34 the “Programme” means a statement of the overall sequence in which the Highway Works are to be carried out which shall include a general description of the arrangements and methods of construction which the Developer proposes to adopt therefore together with an estimate of the amount of time to be spent by the Developer in carrying out and completing the Highway Works and which may from time to time (and only with permission from the Council) be varied to meet the Developer’s programme for the comple1.1.35 the “Remedial List” means a list of all works required to complete the Highway Works and [the Section 228 Works] including but not limited to all inspections surveys grant of easements and all other obligations on the part of the [Developer] [Owner] contained within this Agreement 1.1.36 the “Remedial Works” means, at the expense of the Developer, the reinstatement of and the making good of any defect in or damage to the Highway Works [and the Section 228 Works] (which may have arisen from any cause whatsoever) including any defect in or damage to the Street Lighting and the Surface Water Drainage System of the Highway or the Highway Works as may be notified in writing by the Authorised Officer prior to the issue of either the Substantial Completion Certificate of the Final Completi1.1.37 the “Safety Audit” means the safety audit to be undertaken in accordance with document HD 19/03 Road Safety Audit Volume 5 Design Manual for Roads and Bridges published by The Stationery Office unless specifically instructed in writing by the Authorised Officer in which case the Safety Audit shall be undertaken in accordance with the Council’s Guidance Note on the Provision of Safety Audit

1.1.38 the “Section 228 Fees” means the fees payable to the Council in 1.1.38 the “Section 228 Fees” means the fees payable to the Council in order for it to exercise its authority in proceeding with the procedure as set out in section 228 of the 1980 Act

1.1.39 the “Section 228 Works” means the execution of the specified 1.1.39 the “Section 228 Works” means the execution of the specified works pursuant to the provisions of section 228 of the 1980 Act in accordance with the specification and the drawings as shown coloured green on [Plan B] [Plan C] which the Developer has agreed to carry out to enable the Highway Works to become Highway

1.1.40 the “Site” means all those parcels of land at in 1.1.40 the “Site” means all those parcels of land at in the Parish of in the County of Cornwall shown for the purpose of identification only edged red on Plan A 1.1.41 the “Statutory Undertakers” means any person company corporation board or authority whose apparatus is pursuant to a statutory right or to a licence granted under Section 50 of the 1991 Act at the date of this Agreement already installed in under over or upon the land on which the Highway Works are to be carried out PROVIDED THAT such expression shall include the authorized successor to any such person company corporation board or authority 1.1.42 the “Street Furniture” means all street furniture and associated equipment as referenced on Plan A Plan B and Plan C 1.1.43 the “Street Lighting” means all street lighting and associated equipment as referenced on Plan A Plan B and Plan C 1.1.44 “Structure(s)” means any structure(s) built in under or over any public highway or public highway to be constructed as part of the Highway Works where the least internal span dimension is equal to or exceeds